Yet Another U.N. Scandal

By John A. Hall
September 21, 2007
The Wall Street Journal
Original Source: http://online.wsj.com/article/SB119032899373334471.html
On Wednesday, the United Nations-sponsored Khmer Rouge tribunal in Phnom Penh, Cambodia, detained Nuon Chea, Big Brother Number Two, to stand trial for crimes against humanity. He joins Duch, the former head of the infamous S-21 prison at Tuol Sleng, who has been in the tribunal's custody since late July. This might look like progress toward prosecuting one of the 20th century's most heinous genocides: the extinction of over one million Cambodians between 1975 and 1979. Unfortunately, this optimism masks another U.N. corruption scandal in the making -- one so serious that it threatens the legitimacy of the entire process.
The tribunal was structurally flawed from its inception. After nearly a decade of acrimonious negotiations, the U.N. and the Cambodian government agreed to a hybrid structure that combines international and Cambodian law, and employs a mix of Cambodian and international judges, lawyers and staff. In a sharp contrast to the Sierra Leone and East Timor trials, the U.N. agreed to let Cambodian judges play a decisive and indeed dominant role. Every case at the tribunal will be decided by judges, not juries -- and the trial and appellate chambers all have a majority of Cambodian rather than international judges.
That was a big bet on a notoriously corrupt, inefficient and poorly administered judicial system. Cambodian judges, quite simply, must pay careful attention to the wishes of their political superiors. Few if any would willingly antagonize the ruling political party or the prime minister, and this climate of tacit control undermines the tribunal by limiting the independence of the Cambodian judicial appointees.
Unsurprisingly, serious problems are now popping up. In August, just as the tribunal was getting underway, the Cambodian government elevated co-investigating judge You Bunleng to the presidency of the Cambodian Court of Appeals. This was in clear violation of the rules governing the tribunal, which require that judges appointed to its ranks must serve until their duties are completed -- a rule intended to limit interference by the Cambodian government. The judge, who had developed a good working relationship with the French co-investigating judge, Marcel Lemonde, was in effect promoted off the tribunal.
He'll be replaced by reserve judge Thong Ol, a man regarded as a loyal supporter of Prime Minister Hun Sen and the ruling political party. He is perhaps best known for acquitting former Khmer Rouge military commander Chhouk Rin of charges stemming from a train ambush and kidnapping in 1994 that left dozens of Cambodians and three Westerners dead. Whether Mr. Lemonde will be able to work with his new colleague, and how Mr. Lemonde will react to such heavy-handed interference in the tribunal's inner-workings, remains unclear.
The tribunal has also failed to adequately address allegations that United Nations Development Program funds -- a three-year, $13.3 million national program budget for the Cambodian side of the tribunal -- are being siphoned off as kickbacks. Specifically, Cambodian employees are suspected of paying part of their salaries to superiors in exchange for their appointments and continued employment. The charges, along with questions about hiring practices, were first raised by the New York-based Open Society Justice Initiative, which was subsequently threatened with being denied access to the tribunal's staff and facilities. The UNDP hired a Malaysian company, Candide Consulting, to conduct an independent special audit carried out between Jan. 29 and Feb. 8, and March 27-30, of this year.
The results of that audit, which addressed only OSJI's concerns regarding the lack of transparency of the hiring practices in the Cambodian side of the tribunal and did not report on the kickback allegations, have been vigorously suppressed by the UNDP and the tribunal. The UNDP has not released the document publicly, and doesn't intend to do so. Its Web site states that it is standard practice at the U.N. that these reports are not released to the public. Meanwhile, Cambodia-based journalists report that while the tribunal is typically highly porous, this particular document is impossible for them to obtain from their sources within the tribunal. As a result, the audit has gone mostly unnoticed outside of Cambodia.
The UNDP has good reason to fear publicity. The Special Audit, which I have seen, concluded that while the Cambodian appointees'high salary scales had been initially justified as a means to attract high-caliber local candidates, the hiring process for Cambodian staff was so seriously flawed that recruits did not meet the minimum requirements specified in the vacancy announcements in terms of academic qualifications or professional working experience. Recruitment was not performed in a transparent, competitive and objective manner that ensures the most suitable candidate for the job. Remarkably, international managers appointed by the U.N. had been forbidden from participating in the performance evaluations of the Cambodian staff who work under them. In this way, inept local appointees are shielded from dismissal.
The independent auditors concluded that taking into account the serious lapses in the recruitment process to date, all the recruitments of staff . . . should be nullified and a new, transparent and rigorous recruitment process under the supervision of UNDP initiated to ensure that the most suitable and competent candidates are recruited for every position to ensure the success of the project. This is an extraordinary recommendation, given that the tribunal is halfway through its three-year mandate, and reflects the seriousness of the auditors' concerns. The auditors concluded that serious considerations should be given to withdrawing from participation in the project altogether unless the Cambodian side agrees to measures to ensure the integrity and success of the project.
The U.N. is a public institution, funded by public moneys. It is deeply troubling that the Cambodian government has been allowed to interfere with the tribunal process and allegations of corruption may have been, in effect, covered up. For a start, the UNDP should make the independent audit public, however embarrassing its accusations. If it doesn't, the justice that the Cambodian people have waited over 30 years to obtain may, in the end, mean very little.
Mr. Hall is an associate professor of law and director of the Center for Global Trade and Development at Chapman University School of Law in Orange, Calif., where he specializes in international law.